1. The law in Kansas is clear that the right to an appeal and the procedure to be followed is
strictly statutory in nature.

2. Interpreting statutes involves resolution of questions of law over which an appellate court
has unlimited review.

3. The primary rule for statutory construction is that the intent of the legislature governs if
that intent can be ascertained. We presume the legislature expressed its intent through the
statutory language. Ordinary words are given their ordinary meanings without adding
something that is not readily found in the statute or eliminating that which is readily found
therein.

4. K.S.A. 22-3609a(1) provides that a defendant shall have the right to appeal any judgment
of a district magistrate judge and the appeal shall stay all further proceedings upon the
judgment appealed from. K.S.A. 22-3610(a) provides that when a case is appealed to the
district court, the case shall be tried de novo in the district court. De novo review of
convictions from the magistrate judge to the district court encompasses a new trial on the
convictions appealed from and is not limited to evidence and arguments raised to the
magistrate.

5. Kansas courts have repeatedly defined a criminal judgment as a pronouncement of guilt
and the determination of the punishment. The difference in the wording relative to
appealable judgments contained in K.S.A. 22-3609 (applicable to municipal court appeals)
and K.S.A. 22-3609a (appeals from district magistrate) amounts to a distinction without a
difference, as far as what judgments are appealable.

6. The prohibition in K.S.A. 22-3602(a) against appeals taken by a defendant from a
judgment of conviction based upon a plea does not apply to pleas accepted by a district
magistrate judge.

7. There is no express requirement in K.S.A. 22-3609a requiring a motion to withdraw a
plea, nor will we read such a requirement into the statute.

8. K.S.A. 22-3210 is not the more specific statute in the situation where the case involves an
appeal from a district magistrate judge, not the withdrawal of a plea.

9. The underlying fact in this case is that if a criminal defendant decides to appeal the
judgment of a district magistrate judge, the right to appeal the judgment is unlimited
pursuant to K.S.A. 22-3609a.

10. The district court erred in this case in determining that it had no jurisdiction when,
in fact,
it could properly consider defendant's appeal from a judgment of the district magistrate
judge.

11. There is no requirement that a defendant be aggrieved before he or she can appeal
the
judgment of a district magistrate judge.

BRAZIL, J.: Leander D. Gillen appeals a decision of the district court that it lacked
jurisdiction to consider his appeal from a conviction before a district magistrate judge following a
guilty plea. We reverse and remand.

On September 25, 2005, Gillen was a passenger in a vehicle stopped at a driving under the
influence (DUI) checkpoint. Despite knowing the driver was not under the influence, all
occupants were detained and ordered to exit the vehicle. Officers found marijuana in the vehicle.
Gillen was charged with possession of marijuana and also possession of drug paraphernalia.

Through plea negotiations, Gillen agreed to plead guilty to possession of drug
paraphernalia, a class A nonperson misdemeanor, in exchange for the State's agreement to dismiss
the charge for possession of marijuana. A district magistrate judge accepted the plea
recommendations and sentenced Gillen to 12 months' supervised probation after suspending a
60-day sentence in the county jail.

Gillen appealed his conviction and sentence to the district court for a hearing de novo. On
October 5, 2006, the district court conducted a hearing on Gillen's motion to suppress statements
and evidence. On its own initiative, the district court stated that it had researched the procedural
question of whether Gillen could appeal his conviction and sentence from the district magistrate
judge following a plea. The district court answered this question in the negative, dismissed Gillen's
appeal, and held that K.S.A. 22-3609a does not give a defendant the authority to appeal a
conviction and sentence from a district magistrate judge when the same is the result of a plea
entered pursuant to plea negotiations. The district court's rationale at the hearing was that
appealing under K.S.A. 22-3609a provides a "remedy for a criminal defendant
aggrieved by a
judgment of a District Judge Magistrate" and that Gillen could not be aggrieved by a judgment on
a plea that he voluntarily entered. (Emphasis added.)

Gillen filed a motion for reconsideration. The district court conducted a hearing on the
motion and denied it. The district court held the Kansas statute involving guilty pleas, K.S.A.
22-3210, is the more specific statute in this situation than the statute involving appeals from
district
magistrate judges, K.S.A. 22-3909a, and that a defendant must file a motion to withdraw his or
her plea before the magistrate in order to appeal to the district court. The court held:

"The Court finds that pursuant to the above statutory authority, the
defendant is required to file a motion to set aside his plea in front of the District
Magistrate Court, prior to being able to pursue an appeal to this Court from that
Court's judgment. The defendant not having done so, the Court's order dismissing
defendant's appeal from the District Magistrate Judge remains, and defendant's
motion to reconsider the same is denied."

Gillen appeals.

Gillen argues he had a statutory right to appeal his conviction before the district magistrate
judge. We agree.

The law in Kansas is clear that the right to an appeal and the procedure to be followed is
strictly statutory in nature. State v. Freeman, 236 Kan. 274, 276, 689 P.2d 885
(1984). The
district court in the case at bar interpreted K.S.A. 22-3609a(1) to include a requirement that the
defendant be "aggrieved" from the judgment of the district magistrate judge in order to be allowed
to appeal. The district court also held that after a plea and sentence before a district magistrate
judge, a defendant must file a motion to withdraw the plea and obtain an adverse ruling prior to
appealing the judgment of the district magistrate. These questions require statutory interpretation.
Interpreting statutes involves resolution of questions of law over which an appellate court has
unlimited review. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).

Our appellate courts have stated the guidelines for statutory construction on many
occasions. The primary rule is that the intent of the legislature governs if that intent can be
ascertained. We presume the legislature expressed its intent through the statutory language.
Ordinary words are given their ordinary meanings without adding something that is not readily
found in the statute or eliminating that which is readily found therein. Winnebago Tribe of
Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007); State v. McElroy,
281 Kan. 256, 262,
130 P.3d 100 (2006).

K.S.A. 22-3609a(1) provides: "A defendant shall have the right to appeal any judgment of
a district magistrate judge. . . . The appeal shall stay all further proceedings upon the judgment
appealed from." K.S.A. 22-3610(a) provides: "When a case is appealed to the district court . . .
[t]he case shall be tried de novo in the district court." De novo review of convictions
from the
magistrate judge to the district court encompasses a new trial on the convictions appealed from
and is not limited to evidence and arguments raised to the magistrate. See Reddington v.
Rank,
176 Kan. 484, 271 P.2d 807 (1954) (concerned appeal from municipal court to district court); see
also City of Halstead v. Mayfield, 19 Kan. App. 2d 186, 865 P.2d 222 (1993)
(applying rationale
used in determining when a judgment is appealable from magistrate judge to appeals from
municipal court).

An examination of Kansas jurisprudence in the area of appeals from magistrate judges and
municipal courts reveals that decisions mainly center on the question of what constitutes a
"judgment" from either of those judicial bodies. "Kansas courts have repeatedly defined a criminal
'judgment' as a pronouncement of guilt and the determination of the punishment." State v.
Remlinger, 266 Kan. 103, 106, 968 P.2d 671 (1998). Cases also expressly hold that the
difference
in the wording relative to appealable judgments contained in K.S.A. 22-3609 (applicable to
municipal court appeals) and K.S.A. 22-3609a (appeals from the district judge) amounted to "a
distinction without a difference" as far as what judgments are appealable. See
Remlinger, 266
Kan. at 107.

Our first conclusion is that Gillen clearly appeals from a judgment of the district magistrate
judge pursuant to K.S.A. 22-3609a. Cf.State v. Legero, 278 Kan. 109,
111-16, 91 P.3d 1216
(2004) (majority concluded that a probation revocation order made by a magistrate judge was not
appealable to the district court under 22-3609a). Gillen was convicted of possession of drug
paraphernalia, a class A nonperson misdemeanor, and sentenced to 12 months' supervised
probation. Gillen has a criminal judgment appealable to the district court. The district court would
make this a limited right to appeal. We will not.

There are several recent Court of Appeals cases where the court discussed not so much
the jurisdiction of the appeal from a magistrate or municipal court but the effect of the appeal on
the magistrate's rulings or holdings. In State v. Wright, 26 Kan. App. 2d 879, Syl.,
995 P.2d 416
(2000), the court held that a defendant is entitled to a jury upon appeal from a magistrate court to
the district court even where a jury was previously provided in the initial trial before the
magistrate judge. The de novo wording of K.S.A. 22-3609a was applied, and it was held both the
facts and law were required to be determined in the second trial.

In State v. Rose, 29 Kan. App. 2d 355, 28 P.3d 431, rev. denied
272 Kan. 1422 (2001),
the magistrate judge suppressed the result of the breath alcohol test in a DUI case, and the State
did not appeal this ruling. Nevertheless, Rose was still found guilty of DUI and appealed to the
district court for a trial de novo. The district court refused to suppress the result of the breath
alcohol test and found Rose guilty. Rose argued on appeal that the State's failure to appeal the
magistrate judge's ruling suppressing the test results precluded the admission of the test before the
district court. The Rose court disagreed and held the district judge was obligated to
try the case
de novo "'as if it had not been heard before and as if no decision had been previously rendered.'"
29 Kan. App. 2d at 360.

The district court in the present case is attempting to limit the breadth of K.S.A. 22-3609a
and the term "judgment" based upon the procedure by which a defendant is convicted, either a
plea or jury conviction. The district court is relying on an inference from State v.
Burkett, 231
Kan. 686, 648 P.2d 716 (1982), in concluding that a defendant must be "aggrieved" by the
magistrate's judgment before an appeal to the district court will be permitted. In
Burkett, the
original complaint charged Burkett with a felony. Through plea bargaining, Burkett agreed to a
plea of nolo contendere and the State agreed to dismiss the felony charge and file two
misdemeanor charges, request no incarceration at sentencing, and to make no recommendation as
to a fine. Burkett entered his nolo contendere plea to the two misdemeanors before a magistrate
judge. The judge did not heed the State's recommendation of no jail time and imposed
incarceration of 6 months and 1 year. Burkett appealed to the district judge. The State then filed a
second amended complaint, charging defendant with the original felony and the two
misdemeanors. The district judge dismissed the felony count, and the State appealed. The
Supreme Court framed the issue as "whether the State may reassert the felony charge." 231 Kan.
at 687.

The court focused on the effect of Burkett's appeal:

"The quoted statute, K.S.A. 22-3609a, gives defendant this privilege as a matter of
right.
The effect of the appeal is to stay all further proceedings before the district magistrate judge. The
case is to be tried de novo before the district judge or an associate district judge. The pleas
entered before the district magistrate judge are automatically vacated; otherwise there would be
no reason for a trial. The proceedings start afresh; arraignment must be held; new pleas must be
entered; a jury may be demanded; and if conviction results, the judge must direct the disposition,
whether by fine, sentence, suspension of sentence, probation or otherwise. The plea, conviction
and disposition had before the district magistrate judge are subject to automatic vacation by the
appeal; none remain." 231 Kan. at 690.

A recent Supreme Court case, City of Wichita v. Maddox, 271 Kan. 445, 24
P.3d 71
(2001), involved an appeal from a municipal court to the district court in a DUI case. The
Maddox court held that a district court hearing on appeal from a municipal court does
not have to
rearraign the accused person on any of the charges and may properly hold the trial on the basis of
the municipal court complaint. 271 Kan. at 454. There was no issue raised in Maddox
as to the
district court's jurisdiction despite the absence of an aggrieved defendant.

"The record is not crystal clear, but it appears Maddox entered into a nolo
contendere
plea to the DUI charge and after being found guilty, the four related traffic charges were
dismissed. He was sentenced to 6 months and fined $782. Maddox then appealed the municipal
court's findings and ruling to the district court." 271 Kan. at 446.

The district court's attempt to analogize this case with pleas entered in a district court
criminal case is unpersuasive. Several statutory provisions apply to judgments resulting from pleas
entered in district court. See K.S.A. 21-4721(c)(2) (the appellate court shall not review any
sentence resulting from an agreement between the State and the defendant which the sentencing
court approves on the record); K.S.A. 22-3602(a), which states in relevant part:

"No appeal shall be taken by the defendant from a judgment of conviction before a district
judge
upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds
going to the
legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507 and
amendments thereto."

For several reasons, these statutory restrictions are not applicable in the magistrate judge
setting.

In City of Dodge City v. Frey, 26 Kan. App. 2d 559, 990 P.2d 1240 (1999),
the court
addressed this very issue in the context of an appeal from a municipal court judgment. The brevity
in which the Frey court addressed the issue in the court's 2-page opinion is equally
telling:

"Defendant Kelly G. Frey appeals the district court's dismissal of his appeal from a
municipal court conviction upon a guilty plea to the charge of driving under the influence.
Defendant was sentenced to a $300 fine, 180 days in jail with 178 days suspended on the
condition of outpatient treatment, and 1 year of probation. Defendant asserts K.S.A. 22-3609
allows him to appeal his guilty plea.

"K.S.A. 22-3609(1) states: 'The defendant shall have the right to appeal to the
district
court of the county from any judgment of a municipal court which adjudges the
defendant guilty
of a violation of the ordinances of any municipality of Kansas.' (Emphasis added.)

"The issue before us is whether a guilty plea and sentence constitute a 'judgment of
a
municipal court which adjudges the defendant guilty,' and thus, is appealable under K.S.A.
22-3609(1).

"K.S.A. 22-3602(a) states: 'No appeal shall be taken by the defendant from a
judgment
of conviction before a district judge upon a plea of guilty or nolo contendere.
(Emphasis added.)
The prohibition against appeals provided in K.S.A. 22-3602(a) does not apply to pleas accepted
by a judge of a Kansas municipal court.

"We conclude that the result of a court accepting a guilty plea is a judgment of
such
court and so, under K.S.A. 22-3609, a defendant has the right to appeal." 26 Kan. App. 2d at
559-60.

"We note at the outset a jurisdictional peculiarity. Vargas pled guilty in the
municipal
court, yet he appealed the merits of his case to the district court. However, the prohibition against
appeals provided for in K.S.A. 22-3602(a) does not apply to pleas accepted by a judge of a
Kansas municipal court. See City of Dodge City v. Frey, 26 Kan. App. 2d 559, 560,
990 P.2d
1240 (1999). Therefore, this court does have jurisdiction to consider this issue."

See also City of Wichita v. Bannon, 37 Kan. App. 2d 522, 154 P.3d 1170 (2007)
(after pleading
no contest and being found guilty in Wichita municipal court of criminal trespass and resisting a
police officer, Bannon appealed to the Sedgwick County District Court).

An additional consideration is the lack of legal training/degree for a majority of district
magistrate judges and their limited jurisdiction. See K.S.A. 20-337 (special requirements for
district magistrate judges who are not admitted to the practice of law). Jurisdiction of district
magistrate judges is also limited in the criminal context to "conduct the trial of traffic infractions,
cigarette or tobacco infractions or misdemeanor charges, to conduct the preliminary examination
of felony charges and to hear felony arraignments." K.S.A. 20-302b. In light of these two
considerations, it is understandable why appeals from district magistrate judges can be from "any
judgment."

Justice Robert Miller recognized the unique position of district magistrate judges in his
concurring opinion in State v. Cremer, 234 Kan. 594, 603-04, 676 P.2d 59 (1984):

"We have some eighty nonlawyer district magistrate judges in Kansas. These are
fine,
conscientious people, and an asset to the Kansas judicial system; but they have but minimal legal
training. We do give them instruction, provide them with manuals and–as the majority
noted–we
require all new district magistrate judges to take and pass an examination on the law and be
certified as qualified before they may continue to serve. They have, at most, one or two hours of
instruction on the laws of evidence. The majority believes that the magistrates 'can apply the
statutory rules of evidence without great difficulty.'"

We are also not convinced that a defendant must file a motion to withdraw his or her plea
before the district magistrate judge prior to an appeal in district court. The district court's analysis
in this regard is simply an extension of the "aggrieved" nature of the appeal. There is certainly no
express requirement in K.S.A. 22-3609a requiring a motion to withdraw a plea, nor will we read
such a requirement into the statute. We leave the addition of statutory language to the legislature.
Additionally, K.S.A. 22-3210 is not the more specific statute in this situation where the case
involves an appeal from a district magistrate judge, not the withdrawal of a plea. Further, based
on the current state of the law in Legero, it is not clear whether Gillen would have a
right to
appeal the denial of a motion to withdraw a plea. See Legero, 278 Kan. 109, Syl.
¶ 5, (probation
revocation order made by a magistrate judge was not appealable to the district court).

The underlying fact in this case is that if a criminal defendant decides to appeal the
judgment of a district magistrate judge, the right to appeal the judgment is unlimited pursuant to
K.S.A. 22-3609a. After a timely appeal to the district court, the events and proceedings before the
district magistrate judge are of no consequence. The court in Legero stated: "The
proceedings in
the magistrate court have no bearing on the case as it comes before the district court. Unless
the
appeal is dismissed, the proceedings held in the magistrate court leave no footprint."
(Emphasis
added.) 278 Kan. at 114.

The district court erred in this case in determining that it had no jurisdiction when, in fact,
it could properly consider Gillen's appeal from a judgment of the district magistrate judge. From
the clear statutory language and the reasons cited above, there is no requirement that a defendant
be aggrieved before he or she can appeal the judgment of a district magistrate judge. Gillen's
appeal starts the case anew in district court.